Nicita v. City of Oregon City

Under ORS 197.850(9)(a), when a petitioner asserts a substantial evidence issue, the role of the Court of Appeals is “to ensure that LUBA has followed the proper “substantial evidence” standard . . . not to assess whether the local government erred in making a finding, but to determine whether LUBA properly exercised its review authority.” Root v. Klamath County, 260 Or App 665, 670 (2014).

Petitioner, Nicita, appealed a final order of the Land Use Board of Appeals (LUBA) that remanded the City of Oregon City’s (the City’s) decision on the basis that the Historic Properties LLC’s proposed amendments to the comprehensive plan map and zoning map did not comply with the Statewide Planning Goal 5. LUBA’s order also sustained the City’s determination that the application for the amendments complied with Goal 2.3 (Corridors) of the Oregon City Comprehensive Plan (OCCP). On appeal, Petitioner argued the City’s finding that “the subject property was ‘near a transit stop’ was inconsistent with the express language ‘along selected transit corridors’ in Goal 2.3.” Under ORS 197.850(9)(a), when a petitioner asserts a substantial evidence issue, the role of the Court of Appeals is “to ensure that LUBA has followed the proper ‘substantial evidence’ standard . . . not to assess whether the local government erred in making a finding, but to determine whether LUBA properly exercised its review authority.” Root v. Klamath County, 260 Or App 665, 670 (2014). In this case, whether “near a transit stop” is consistent with the express language “along selected transit corridors” is not dispositive because that was not the “interpretation” that the City made. LUBA found that the City’s interpretation was entitled to deference under ORS 197.829(1)(a) because it plausibly accounted for the text and context of Goal 2.3. Petitioner’s interpretation was not, in context, the only plausible interpretation of the phrase “along selected transit corridors.” The Court of Appeals held that because the record contained “substantial evidence” to support the City’s findings were permissible, LUBA did not err in deferring to the City’s interpretation. Affirmed.